Denver Post

al knight

Another blow to marriage

By Al Knight
Denver Post Columnist
Wednesday, June 20, 2001

Acting without appropriate fanfare, the Colorado Legislature has made the option of marriage and child-rearing in this state much less attractive.

The statutory changes enacted this year don't deal directly with marriage but rather with divorce, and as everyone knows by now, about half of all marriages end in divorce. Thus, the changes may affect half of those who wed and choose to have children.

Specifically, lawmakers approved changes that make it easier for a primary residential parent involved in contentious post-divorce custody issues to move out of state, sacrificing the relationship the child has with the other parent.

What the legislature did was take a poorly reasoned 1996 Colorado Supreme Court decision and make it worse, reversing prior court precedent and practice, which in Colorado and elsewhere presumed that both parents were entitled to unrestricted parenting time (previously called "visitation").

Senate Bill 29, sponsored by Sen. Ken Gordon, a Denver Democrat, will encourage some primary residential parents to avoid court-ordered custody and parenting-time arrangements. The new law, to be effective in September, authorizes the party with whom the child resides a majority of the time" to merely notify the other parent of the decision to relocate in a way that substantially changes the geographical ties between the child and the other party."

Once this is done, the prior presumption in the law that protects a parent's rights to parenting goes out the window and may not be considered by the court. Gone, too, is the prior policy that required the residential parent to persuade a judge that removing a child from the state and from the other parent was in that child's best interest. Now, it will be up to the opposing parent to bring the action and to demonstrate that the move should not take place - a subtle but important shifting of the burden.

The 1996 Colorado Supreme Court decision, written by Justice Rebecca Kourlis, changed the precedents. Although historically most states discouraged removal of the children," Kourlis wrote, "a growing number of states now presume that the custodial parent's decision to move the child is affirmatively in the best interests of the child."

The fact is that many states, including Colorado, had written the opposite presumption into the law: namely, that the removal of the child to another state would not normally be in the child's best interest in that it would diminish or obliterate the relationship the child had with the other parent.

Kourlis and the other members of the court were clearly not much concerned about the other party" in most cases. She quotes a New Jersey case: A noncustodial parent is perfectly free to remove himself" - note the gender assumed by the court - "from this jurisdiction despite the continued residency of his children in order to seek opportunities for a better or different lifestyle for himself."

Both Kourlis and the New Jersey court are correct, of course, but the observation is irrelevant. In the cases affected by the Kourlis decision and by the Colorado law, the men aren't moving away from their children - they are objecting to the fact that their children are being moved away from them. Big difference.

The Kourlis decision irritated a number of judges who felt it limited their usual discretion. Some had been issuing automatic orders at the time a divorce was granted that prohibited a child's removal from the state without court approval. The legislature could have left well enough alone or acted to directly correct the defects in the Kourlis decision.

Instead, lawmakers have virtually invited the residential parent to simply relocate and thus remove herself - note the pronoun - from any friction she may be experiencing. The new law is yet more proof that when someone mentions the best interests of the child," it is code for the best interests of the mother."

After all, is it ever in the best interests of a child to terminate a meaningful relationship with a caring parent?

Al Knight (aknight@chaffee.net) is a member of The Denver Post editorial board.

Copyright 2001 The Denver Post.